Pending Supreme Court Rulings

Editor’s note: This is the second article in a four-part series.

In 1995, Jennifer Gratz was denied admission to the University of Michigan. Two years later she sued the university, alleging that she had been denied equal treatment under the law because of its "affirmative action" program. The university had admitted minority students ahead of her by using a system where members of racial minorities earned substantial bonus points toward admission. Since Gratz was white, she was not eligible to earn the extra points.

Although Gratz eventually won her case before the Supreme Court, the negative experience filled her with the resolve to make certain that race should not play a part in future University of Michigan admissions. With the help of Ward Connerly, a tireless African-American opponent of affirmative action, she formed the Michigan Civil Rights Initiative, which aimed to put an initiative called Proposal 2 to a state-wide vote. (An initiative is a procedure recognized by law which permits citizens to seek sufficient signatures to put an issue before the electorate for a vote up or down.) Gratz and her organization succeeded in getting the necessary signatures. As a result, Proposal 2, banning public universities and schools from using race-conscious admissions programs, was put on the ballot.

In November 2006, following an acrimonious campaign, 58 percent of voters were in favor of the ban on affirmative action, which then became an amendment to Michigan’s state constitution. Soon after, the constitutionality of Proposal 2 was challenged by pro-affirmative action groups and appealed through the courts until it reached the Supreme Court where it is today—known as Schuette v. Coalition to Defend Affirmative Action. (William Schuette is the Michigan attorney general.)

The issue of the case is straightforward: Has Michigan violated the principle of equal treatment, formally the Equal Protection Clause, when it demands that its public education institutions treat applicants equally in admissions decisions, that is, without regard to race? The answer appears to be self-evident: Of course not!

However, a majority of the 6th U.S. Circuit Court of Appeals, from which the Schuette case came on appeal, used a judicially created doctrine called the "political restructuring doctrine" to conclude that the Michigan ban on affirmative action was unconstitutional. Why?

According to the 6th Circuit ruling, the citizens of Michigan, by their "yes" vote on Proposal 2, have reshaped or restructured the political landscape in which minorities now operate. Proposal 2, they ruled, has imposed a heavier burden on minorities who want race-related admissions policies re-established because now the only way they can achieve the reinstatement of affirmative action is to amend the Michigan constitution. Before Proposal 2, they argue, minority members simply had to convince university administrators of the need for racial preferences. Now, they have to launch a state-wide and costly political campaign. In other words, the political terrain that they must traverse is more forbidding than before. Therefore, concluded the 6th Circuit majority, the "restructuring" produced by the passage of Proposal 2 was burdensome and produced unequal treatment for minorities and offended the Equal Protection Clause of the U.S. Constitution.

The political restructuring doctrine is a vague and unconvincing "anomaly incompatible with the Equal Protection Clause," according to dissenting 6th Circuit Judge Richard Allen Griffin. There are good reasons for agreeing with Griffin.

First, the use of initiatives by citizen groups can hardly be said to be a new restructuring of the political process. Since the early part of the 20th century, citizens in most states have had available to them the political-initiative apparatus to resort to if they are dissatisfied with the action or inaction of their elected representatives. According to the Initiative & Referendum Institute at the University of Southern California, Michigan had its first meaningful initiative statute in 1913. Michigan citizens have had this way of "speaking" on issues for over 100 years and they have used it many times.
A second reason to agree with Judge Griffin is that initiatives have been used by citizens that hold views found on all parts of the political spectrum.

Michigan has had a number of initiatives over the last 15 years, the results of which defy a single political perspective. Initiatives in Michigan approved the definition of traditional marriage in 2004, but disapproved public school vouchers in 2000. In 1998, voters disapproved physician assisted suicide, but approved medical marijuana in 2008. Clearly, initiatives are available to everyone regardless of political ideologies.

Third, the initiative device is not particularly burdensome to use, despite the claims of affirmative-action supporters. In his own dissent, Judge Jeffrey S. Sutton points out that under the Michigan constitution those who want to have an amendment considered by this means must gather signatures equal to 10 percent of the votes cast in the most recent election for governor and then receive 51 percent of the votes cast in the general election. The proposal then becomes an amendment to the constitution, and thus becomes law, without the need for the governor’s nor the legislatures’ approval. Organizations devoted to civil rights and affirmative action have long been sophisticated participants in the political process. What was done by Gratz and her group can just as easily be undone by those seeking to reinstate affirmative action. The Michigan rules and requirements governing initiatives have not been changed by Proposal 2. In reality, no "restructuring" has actually occurred.

Finally, the Coalition to Defend Affirmative Action maintains that Proposal 2 is a type of racial classification and therefore cannot stand. Quite the contrary, Attorney General Schuette maintains that Proposal 2, as passed by the citizens of Michigan, is racially neutral. It requires what the renowned Justice John Marshall Harlan exclaimed in his dissent in Plessy v. Ferguson: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

This is exactly what the citizens of Michigan have said and their voices should be heard and heeded by the Supreme Court.

–Dr. John A. Sparks is the retired dean of the Calderwood School of Arts & Letters, Grove City College, Grove City, Pa., and teaches constitutional history and business Law on a part-time basis. He is a member of the State Bars of Michigan and Pennsylvania and is a fellow for educational policy for The Center for Vision & Values at Grove City College.